Stay Orders – A termite in the Indian Justice System

A recent decision by the Supreme Court has set a new precedent by specifying a time limit and its applicability on the operation of stay orders. Indefinite stay orders act like a termite in the Indian Justice system. This right usually gets mocked and abused by the wrong doers for their own benefit. Those petitions where stay has been granted take years to wind up and as a consequence trials remain pending. The dire need to manage the issue of delay in justice delivery system cannot be denied and is required to be taken seriously not only by the system but also by lawyers.

In order to prosecute an accused under the law, there has to be a seal of confirmation from the Court that the accused has very likely committed the alleged crime. This confirmation is acquired through an order passed by the court framing charges on the accused. The process of trial succeeds this order. As soon as an order framing charge is passed against an accused, it is invariably countered by him under the appropriate provisions of the Code of Criminal Procedure as well as through writ petitions under Article 227 of the Constitution of India thereby increasing workload in courts with a sole aim to secure stay on proceedings and delay the process of trial. Till the time the accused is shielded with the stay order, he can easily tamper with the evidences and the witnesses of the case thus negating its fair trial. This practice not only delays the process of justice but also encourages crime and corruption.

Not all the petitions challenging an order framing charge can be stereotyped, albeit, the motive behind majority of these petitions is to delay the trial and defeat the ends of justice. Justice delayed is justice denied, a quote chanted often but rarely practiced.

Condemning trial delays as well as acknowledging the need of balancing the timeline of justice delivery, in the absence of which the final verdict can be redundant, the Supreme Court in the landmark case of Asian Resurfacing of Road Agency Pvt. Ltd. and Ors. v. Central Bureau of Investigation directed that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months unless in an exceptional case such stay is extended by the Court through a speaking order.

The Court further ruled that any challenge to an order framing charge should be entertained in the rarest of the rare cases only to correct an obvious error of jurisdiction and not to hear the matter again. In addition to this, the court also held that where such challenge is entertained and thereby stay is granted, the matter should be heard daily so that the stay does not operate for an undue length. Though no mandatory time period was fixed to decide the matter, a period of approximately three months was prescribed to conclude it.

The judgment rendered by the Supreme Court assumes force of law and is binding upon all the other courts in India (Article 141). The scope of the law laid down in the Asian Resurfacing Case was expanded to all civil and criminal cases. These directions by the Apex Court acted like a torch bearer and hence came to be relied upon by different High Courts while making an order of stay. The above judgment only referred the cases to which its directions will be applicable. It never went on to make a point to the effect that whether these directions were applicable to the interim orders passed by the Supreme Court itself. A division bench of the Supreme Court, while elaborating the scope and applicability of the directions given in the case of Asian Resurfacing (Supra), penned down a detailed discussion in the case of Fazalullah Khan versus M. Akbar Contractor (D) by Lrs. & Ors in I.A. No. 27524 of 2019 in Civil Appeal No. 6088 of 2011. The Hon’ble court clarified that the law laid down by this court in the Asian Resurfacing of Road Agency case is not applicable to the interim orders passed by the Supreme court and observed that if an interim order is passed by the Court and is not vacated by reason of pendency of appeal, it should not be assumed that the order will automatically cease to have its effect after expiry of six months.

Similarly, it is interesting to note here that an exception was pointed out by the High Court of Karnataka to the law laid down in the above case. The Hon’ble High Court of Karnataka, while dealing with the issue that whether the bar of six months will also be applicable to a case where an order has been passed by the Appellate Court staying a judgment and/or decree, ruled that it is crystal clear that the judgment of Asian Resurfacing Case applies only when the proceedings of trial are stayed by the High Court and not in the circumstances of stay of judgment and/or decree by Appellate Courts. This, in effect, is also one of the factors delaying the delivery of justice.

Once the charges are framed, the next process is to challenge them and reap the undue benefits of delay while courts struggle to decide the petition. No doubt that the law laid down in the Asian Resurfacing case has made an attempt to deal with the disposal of civil as well as criminal cases on timely basis. But, the fact that this case exclusively applies to the stay of proceedings of trial and not to any other kind of proceedings decreases the scope of its effect. Moreover, the further ruling of the Apex court clarifying that the directions apply to all the Courts except the Supreme Court further fails to serve the purpose.


Article by Jagriti Bharti (1st published on Lexology)

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